Can the Medical Board Delay Your License While Criminal Charges Are Pending?

Past criminal charges are often sealed in California.  Since 2020, the Medical Board does not require an applicant to disclose prior criminal record history, pursuant to Business and Professions Code section 480. Any criminal record will be discovered so it doesn’t really matter if it is “disclosed”. They know. The Board will request the applicant to voluntarily provide an explanation and evidence of rehabilitation.

What about dismissed cases or those that are sealed? Until recently, the Board has been notified of all criminal record history, including convictions that have been dismissed or expunged. The Board may not deny a license solely on the basis of a conviction that has been dismissed, pursuant to Penal Code sections 1203.4, 1203.4a, 1203.41, 1203.42, or 1203.425, or a comparable dismissal or expungement. Under the new California clean slate law can the board be denied notice? That has not yet been tested.

But What if Charges are Pending & Not Resolved?

In some ways pending charges are worse than having been convicted and having served out your sentence!  Here's the question? If criminal charges have been filed but not resolved? Can the board deny or delay approval of an otherwise valid license application?  The medical board says "yes" and license applications can be put on ice for months or years while criminal charges are pending.  At most, an arrest is based upon a “reasonable suspicion” of criminal conduct by the defendant.  A conviction which can be minimized once the sentence is served requires proof beyond a reasonable doubt or a guilty plea.  So why are pending charges allowed to derail an application when a prior conviction often cannot?

It's even more unfair than that.  The principle that a person is innocent until proven guilty is enshrined in various legal sources, both statutory and case law (Pagano v. Allard, 218 F.Supp.2d 26 (2002))[1]. According to West's Annotated California Penal Code § 1096, a defendant in a criminal action is specifically presumed innocent until proven guilty, and the state bears the burden of proving guilt beyond a reasonable doubt (Code § 1096), (U.S. v. Doyle, 130 F.3d 523 (1997)) This principle is also upheld in federal constitutional law, though not explicitly stated in the Constitution itself. Key Supreme Court and other federal cases affirm that the presumption of innocence is a fundamental tenet of the Due Process Clause of the Fifth Amendment, as outlined in cases like Coffin v. United States and further discussed in Herrera v. Collins and United States v. Hills.

So if a doctor is truly innocent or at least PRESUMED INNOCENT how can the medical board hold up an application?

Also at what point is an application delayed an application denied? The Due Process clause of the United States Constitution prevents a state agency from denying a person any rights, liberties or property without giving the a fair hearing (due process of law) If the delay which can last a year or more (criminal cases often move slowly) isn’t the doctor being penalized for having charges pending even if the doctor is presumed innocent?

There are no cases deciding these issues. We see the testing process as requiring demands to the medical board for a fair review of the application. If they refuse or if the application is denied, a petition for writ and if that is denied an petition to the Court of Appeal/Supreme Court will follow.

Unfortunately for the doctor the expense of this process is stunningly high and the chances of success are unclear.

If you have pending criminal charges Daniel Horowitz as a state certified criminal defense specialist is often the best attorney for a physician in this situation.  If you need help with a pending license application which is held up due to pending charges.  Our office represents physicians in licensing matters, peer review and criminal cases.